Judge slams Legal Aid cuts

Andrea Petrie

Criminal trials could face indefinite delays from as early as this week because of drastic cost cuts at Victoria Legal Aid, a Supreme Court judge has warned.

"Completely unsatisfactory" is how Justice Lex Lasry described a decision by Legal Aid to cut funding to an accused man's defence team, which would prevent his barrister from having an instructing solicitor during the trial.

The barrister told the court on Tuesday that legal aid funding had only been provided for an instructor to attend on the first half-day and the last half-day of the imminent trial.

"We can't just sit by and let this happen and I'm not prepared to," the judge said after the court had to be adjourned to enable the barrister to find the solicitor he had been working with in the lead-up to the trial so he could find out what was going on.

"I understand, from many years of experience, what's involved in defending cases in this court, and in the County Court, and this is just completely unsatisfactory."

He said the trial would inevitably take longer without the defence having an instructing solicitor to assist. This would inevitably mean a greater cost for the public.

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"The most obvious example is that in the course of cross-examining a witness or some other event during the trial, you are suddenly faced with a need to get instructions," he said.

"I don't understand how you are supposed to do that unless the trial is stopped, the momentum of the moment is lost, the jury is sent out of the courtroom while I give you time to consult with your client. It is just ridiculous that you should be placed in this situation."

Judge Lasry told the defence barrister to inform legal aid that "I consider you require a solicitor for the duration of the trial so that the case can be properly defended and properly conducted."

He added: "I'm trying to think of neutral words to describe this, but that is highly unsatisfactory ... something has to be done about this."

Legal Aid announced in December that it was introducing the widest-ranging changes to its guidelines in its history as it braced for a deficit of more than $3.1 million this financial year.

The deficit followed unprecedented demand for its services.

Law Institute of Victoria president Raynah Tang said the "extraordinary episode ... illustrates the folly of slashing legal aid funding."

"This means the accused's representation is compromised," he said.

"Meanwhile, the prosecution has instructing solicitors for the entire course of the trial and the benefit of an informant (lead police investigator on the case). The negative perception of this in the eyes of the jury cannot be understated.

"The Law Institute of Victoria agrees with the judge's comment that the legal aid funding cuts are completely unsatisfactory, and we expect to see more cases which will be delayed or, in the worst case, stayed as a result," he said.

"Cuts to legal aid will have a detrimental impact on the administration of justice."

But a spokeswoman for legal aid said no application for funding had been received before the judge's comments were made.

"So we assume the accused had private arrangements for funding his legal representation in this matter to date. The accused was granted legal aid later today and will be funded for legal representation at trial," she said.

"Victoria Legal Aid believes that well-prepared barristers make the biggest impact on outcomes at trial. All people who are eligible for legal aid will continue to be represented by barristers at trial but instructing solicitor fees are capped at two-half days. In many other jurisdictions barristers successfully run legally aided trials without instructing solicitors.

"The judge in this case is suggesting that we pay for a second lawyer - an instructing solicitor – for the trial in addition to funding a barrister and funding solicitors to prepare for the trial," she said.

"We have to make some thoughtful decisions to use limited legal aid funds to prioritise services where they are most needed. Our new guidelines announced in December reflect the fact that we do not believe automatically funding two lawyers for every criminal trial is the most appropriate use of legal aid funding."

Under the Victorian Criminal Procedure Act 2009, the court can order Victoria Legal Aid to fund legal representation for serious criminal trials but not the identity, number or remuneration of lawyers, she said.

"We would welcome further clarification of the extent of the power to order legal representation to be funded," she said.

"Our legal aid guidelines continue to prioritise funding for legal representation in serious criminal trials where the accused cannot afford it themselves, both to ensure a fair trial and because it saves the community money as unrepresented people can take up a lot more court time and resources."

An earlier version of this article did not name the judge, however, Justice Lex Lasry later approved the use of his name as the source of the comments.